Saturday, October 30, 2010

There has been a lot of speculation and allegations about Ukraine's local elections which are being held this weekend. Normally local elections would not rate much attention but in Ukraine the word election and corruption go hand in hand.

Former Prime-Minster come self declared opposition leader in exile (She is not a member of parliament) Yulia Tymoshenko, has come out and declared the election fraudulent with another round of allegations of vote rigging and illegal printing of ballot papers.

Tymoshenko last week took the media with her to expose a illegal printing of ballot papers in Lviv. Problem was when they got there there was no signs or evidence of any ballot papers. Similar allegation were made in Kharkiv region but it turned out the factory was authorised to publish ballot papers.

The real problem facing Tymoshenko is credibility.

During the 2010 Presidential elections Tymoshenko also made allegations of vote fraud and declared that the elections in which she lost by a margin of 3 percent were fraudulent. This in spite the fact that the result of the elections had been endorsed by all International observer groups and was backed up by public onion polls and exist polls all which confirmed the official results. On review there was no evidence to back up the claims made by Tymoshenko. Tymoshenko never the less stated that she would pursue her allegations and challenge the results in the courts and if need be would appeal to the International Community. Weeks went by and Tymoshenko failed to provide any evidence of any serious wrong doing or any facts that substantiated her claim that the elections was fraudulent. Faced with growing criticism and lack of international backers and a serious loss of confidence Tymoshenko withdraw her challenge against the results of the election.

Nine months later Ukraine is back in a new election cycle and Tymoshenko is again alleging election fraud. It is not that there is no concern about the election, there is, but Tymoshenko has to date not provided any substantial evidence to support her claims.

The International community concerned about the need for open transparency and confidence in the internal elections has set a delegation of observers. Many who have a bias agenda . Most are reluctant to be seen to back Tymoshenko's allegations and there is growing concern that she may have lost all credibility to such an extent that no-one is prepared to take her seriously.

It has become a situation where even if there is voter fraud no one will come to her aid or believe her, such is the loss of her credibility. The polls are also showing a corresponding loss of Tymoshenko's support in the electorate.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.